Cases from November 2014

Carefree RV living! Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper … what fun!

At least it’s fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (we’re guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not thatRandy Newman).

Mary sued Coleman. Its stupid camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be-ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or … or something.You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary complained that the cleanup spoiled her evidence, and the trial court, amazingly enough, agreed. But then it concluded that the evidence showed that any rot on the limb was not clearly observable, which let the Lehmans off the hook. And the whole derecho event was an act of God for which the Lehmans ­ including the Facebook-relationship-status “single” Randy – could not be blamed.

Wow. Sued by your own girlfriend. Now that’s what we call getting dumped.

The camper was owned by Linda and her husband, David, and was located in their back yard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that, regardless of whether the tree appeared to be healthy, the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper remains, after photographic evidence was collected.

Mary sued Randy and his parents, and then she moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehman’s answer because of the spoliation, but then granted summary judgment for them anyway, and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the limb falling was an act of God that precluded Randy’s liability.

The Court held that the Lehmans removed the limb and camper not to frustrate the plaintiff’s but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in camper at the time.

Case of the Day, Tuesday, November 4, 2014

DO BAD FENCES MAKE BAD NEIGHBORS?

We often wish we recalled more from our real property law classes taken our first year of law school, much longer ago than we’re willing to admit. But we still recall our amazement when we first heard about the doctrine of adverse possession. It seemed at once shocking and exciting to us that an enterprising trespasser could move onto someone else’s land, and – if they squatted long enough – graduate from trespasser to owner for free. Is this a great country or what?

We shared beers with classmates and argued about which fact patterns would let the Freddy Freeloader family get title from Albert Absentee, just because the Freeloaders squatted on the property. In fact, we can still recall the property-law mantra: open, notorious, exclusive, continuous and hostile. That is, for whatever period the statute requires, commonly 21 years (but it can vary by state), the squatter must take possession of the land openly and notoriously. The possession must be continuous and unshared with anyone who actually has the right to the land. Finally, it must be adverse to the landowner’s interest. It seemed simple to us. What we didn’t know as law students but we know now is that judges generally don’t like giving away someone else’s property to a party claiming by adverse possession, and as a result, meeting the adverse possession test isn’t always that easy to do.

But it can happen. Today’s Arkansas case is a prosaic illustration of how this is so, and how courts sometimes shape the adverse possession tests to do justice. The Boyds and Robertses were friendly rural neighbors. For decades, both families had always thought that the old, run-down fence dividing their properties was the boundary. The Robertses and their predecessors had used all of the land up to the fence, planting grass, grazing cattle, maintaining the fence, clearing brush – even paying the taxes – for over 20 years. The Boyds accepted things the way they were. After all, everyone knew the fence was the boundary.

The time came when the Boyds had a survey done and discovered that everyone was wrong. The fence wasn’t the boundary. Instead, the Boyds owned a whole lot more property than they ever thought they did. Even after discovering that, they didn’t push the Robertses back, but instead let the fence stand. It was a good fence, and made for good neighbors.

But finally, the Boyds made plans to sell their place to Winningham, someone who wasn’t so friendly. Winningham and the Boyds told the Robertses to move back to the property line, and Wimmingham tore down the old, overgrown fence. Litigation (not hilarity) ensued.

Generally, if a squatter “encloses” the land with a fence, the act of enclosure is enough to meet the “open and notorious” requirement for adverse possession. Here, Boyd’s buyer strove mightily to convince the court that the Robertses had never really possessed the disputed land, but the Court was not impressed. The old fence didn’t really “enclose” anything, but it made an “open and notorious” claim, even if the parties believed all along that the Robertses’ possession was righteous. It seemed hardest for the Court to swallow the fact that the Robertses had paid the taxes on the disputed land. Somehow, it just didn’t seem fair to pretend the Boyds had controlled it all along.

Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (Ark.App. 2007). The Boyds purchased their property in 1981. At that time, a barbed-wire fence ran between their property and the property to the east, which was purchased by the Robertses in 1990. The Boyds had a survey performed in 2002 that revealed the true property line ran from 75 to 96 feet on the Robertses’ side of the barbed-wire fence. Pursuant to the survey, new boundary lines were marked and staked.

During the summer of 2004, after seeing the markers, Mr. Roberts contacted Mr. Boyd and was informed that the Boyds were claiming the property according to the new markers. Mr. Roberts was further informed of the Boyd’s intention to sell the property to Winningham. The disputed area was used as a pasture and a hay meadow. Boyd had known for 22 years that the true line was east of the fence but did not know the true line’s exact position because of the drainage ditch. Instead, he had just gone by the fence.

The trial court found the Robertes to have possessed the disputed property by maintaining the fence, mowing as close as possible to the fence, and running horses on the disputed area. The Boyds and Winningham did not dispute that the Robertses had color of title and paid the taxes on their property or that the Robertses’ activities lasted more than seven years. The trial court found that the Robertses intended to adversely possess the property because they believed that they owned the property. It held that the title should go to the Robertses, and it even awarded them $511 for destruction of the fence. Winningham appealed.

Held: The award of the disputed property to the Robertses was upheld. Winningham argued that the disputed area was not enclosed because the fence surrounding it was degraded prior to its removal by Winningham. While the construction of a fence is not necessary to constitute adverse possession, fencing the disputed area is an act of ownership evidencing adverse possession.

We wish this shirt had been around when we were in law school – it would have made the doctrine of adverse possession much more real and understandable for us …

The fact that the fence may have been degraded did not necessarily mean that the property was no longer enclosed. The question was properly whether the enclosure, like other acts of possession and claims of ownership, was sufficient to “put the true owner upon notice that his land was held under an adverse claim of ownership.” Here, the Court said, the fence was visible enough so that all of the parties knew it existed when they purchased their respective properties. Furthermore, the parties undisputedly treated the fence as the boundary between their properties. On these facts, the Court said the property was sufficiently enclosed so as to provide notice that the Robertses were claiming the land up to the fence.

Winningham also argued that the Robertses did not actually possess the entire disputed area because a ditch prevented them from mowing all the way to the fence. But the Court found that because the disputed tract was enclosed, the Robertses’ possession of any part thereof is constructive possession of the entire enclosure. Winningham maintained that the Robertses’ possession was not “open and notorious.” The Court held that actual possession of real estate was notice to the world of claim or interest of one in possession, regardless of whether such claimant had on record a written instrument creating in him an interest or title. Notice of adverse possession could be inferred from facts and circumstances, such as grazing livestock, erection of a fence, or improving the land. Here, the Robertses’ activities were visible to all and were the type that would normally be done by one claiming ownership.

Title to the disputed area was transferred by the Court to the Roberts family.

Case of the Day, Wednesday, November 5, 2014

PLEASE RELEASE ME

It seems like every ticket you buy has a waiver of liability printed on the back … and who ever pays attention to them?

Englebert Humperdinck wasn’t thinking about this kind of release, and most of the time, neither do we. But prospective releases or liability waivers are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered … The takeaway – write your release to be reasonable, or a court may ignore all of it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver there.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.

Case of the Day, Thursday, November 6, 2014

PLEASE RELEASE ME

It seems like every ticket you buy has a waiver of liability printed on the back … and who ever pays attention to them?

Englebert Humperdinck wasn’t thinking about this kind of release, and most of the time, neither do we. But prospective releases or liability waivers are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered … The takeaway – write your release to be reasonable, or a court may ignore all of it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver there.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.

Case of the Day, Friday, November 7, 2014

TRIP, STUMBLE AND FALL

Mrs. Taubenfeld should have listened to theMamas and Papas… they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk. She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk. The Court disagreed, saying that the lease didn’t matter, because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

And no such duty existed here. A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue. If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance. Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create ­– the statutes do not give general public the right to sue for damages arising from noncompliance.

Held: Starbucks won and the suit was thrown out. While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping. Assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist. The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root since neither created the root or causehbnbd it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

A book on Mrs. Taubenfeld’s reading list.

In this case, the lease imposed on Starbucks only a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by putting out two tables with two chairs each, the special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking and others were standing around Starbucks’ tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, that fact made neither Starbucks nor Park Plaza liable to her.

Case of the Day, Monday, November 10, 2014

IT DEPENDS ON WHAT KIND OF TREE …

Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. Named as a defendant is the property owner at the corner, who is accused of contributing to the accident by having overgrown trees and shrubs that obscured the stop sign.

There was testimony by the investigating highway patrol officer that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

A Georgia statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs. Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices. But the catch is that the owner must have planted the trees and shrubs himself or herself: it the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no evidence the landowner had planted the overgrown vegetation, it didn’t matter how bushy it was. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. So it really did depend on what kind of tree it was …

Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Grant did not see Rachels’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu …

Rachels’ estate sued Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. Rachels’s negligence claim was premised upon Thompson’s having violated OGCA §32-6-51(b), which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and Rachels appealed.

Held: The case was dismissed.

The Court noted that OGCA §32-6-51(b) has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that the foliage at issue was purposefully planted by Thompson. The photos placed into the record by Rachels in opposition to the motion show a lot overgrown with kudzu.

Further, in his response to interrogatories, Thompson stated that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that Rachels has failed to show a breach of duty by Thompson, and summary judgment was correctly granted to the defendant. Therefore, the case was dismissed.

Case of the Day, Tuesday, November 11, 2014

TRESPASS, GEORGIA STYLE

When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe. “Just a little easement, ma’am,” the engineering firm told Mrs. Walls. “And we promise not to cut down any trees.”

You can see where this is going. What’s the first thing the contractor did? You guess it — started cutting down the Walls’ trees. Plus, after the contractor was done with the drainage pipe, the Walls complained, their property flooded. After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case out. But on appeal, the Walls won back their trees. The appellate court ruled that the Walls didn’t prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water. The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property. The engineers were responsible for supervising their contractors, given the engineering firm’s representative telling Mrs. Walls that he would stop the tree cutting. A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008) The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road. Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees. Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees. Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe. The Walls had never experienced standing water before the construction. Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees. The trial court tossed the case out. The Walls appealed.

Held: The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim. As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem. To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area. Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting. Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA §51-9-1. The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers. This is an important expansion of liability for trespass. Often the trespasser is a mere functionary. The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor. Being able to reach such a defendant is crucial.

Case of the Day, Wednesday, November 12, 2014

IT WAS A DARK AND STORMY NIGHT …

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Clifford, the opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name. In today’s case, it really was a dark and stormy night when farmer Hays drove his truck through the Ohio countryside, past the golf course owned by the local lodge of the Benevolent and Protective Order of Elks.

On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hays, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

Relying on rather thin precedent, the trial court threw out the Hays descendents’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

The Supreme Court started with the observation that the law permitted every landowner to make such use as the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others. It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise. The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which tried to identify trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen … but the landowner may be liable, depending on what he knew and when he knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Ohio App. 6 Dist. 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

Mr. Hay’s Estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the said tree extended over the road, that it had been struck by lightning, and the tree was thus weakened. The complaint concluded that the Elks had neglected to remove or to brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held: The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects which may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute in Restatement of the Law had noted that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowner knows there’s a problem, she should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. But the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.”

Because the complaint filed by the Hay Estate alleged that the Elks had actual knowledge of the decayed tree, the complaint made out a claim that, if true, would entitle the Estate to recover. The case was reinstated and sent back to the trial court.

Case of the Day, Thursday, November 13, 2014

DUMB ADULT STUNTS

We have two dumb adult stunts to consider today. The first was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed. Kids, don’t attempt this at home! Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Alexson’s unwillingness to accept the blame for his own stupidity. He didn’t, of course – who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee for use of the Foundation property, and Alexson was on the land for a recreational purpose. Alexson’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum. But the Court ruled that it didn’t charge Alexson to ride his bike around the grounds, and that was good enough. After all, he didn’t fall in the museum attic.

A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute. Horse hockey, the Court said. The statute clearly doesn’t limit recreational activities to the one listed. Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Alexson, but the Foundation’s failure to warn me of the danger was willful or malicious. Maybe so, the Court said, but Alexson needs to do more than just give the Court his rather slanted opinion that it’s so.

The case was tossed, as it should have been. Dumb adult stunts, indeed.

Alexson sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune.

Held: The Foundation was protected by the Connecticut Recreational Use Act. The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Alexson argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge. In addition, Alexson alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Alexson was injured was always available for recreational use to the public without charge. Alexson admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Alexson was injured available, free of charge, to the public.

The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding. The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …” It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive.

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute. Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Alexson could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.

Case of the Day, Friday, November 14, 2014

UNDER A SPREADING CHESTNUT TREE

The year 1929 ended badly for a lot of people, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo, when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Costillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.” Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – ­whether a landowner or a highway traveler ­– is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants – such as Brandywine Hundred Realty in this case – want the duty to be as minimal as possible – where plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees, to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but, “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law, because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed, and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held: The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway, and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.”

The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v County of Snohomish, a Washington State decision). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) a public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.

Case of the Day, Tuesday, November 18, 2014

THE LIMITS OF CAUSATION

Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury, Mrs. Palsgraf? The fact the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Another failure of the Obama Administration? Or the obstructionist GOP? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or perhaps mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea … when someone is badly injured, it’s only natural to look around for someone to blame, someone with deep pockets. And if it’s not the first you’d think of, rest assured that it’s the first thing your lawyer would think of. In this case, however, the Court refused to stretch the limits of causation unreasonably. While not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that Rayburn was a consenting adult, and he freely agreed to assume the risks. The lesson, kiddies — and we don’t care what the slick lawyer’s ad on the back of your phone book says — is that someone else doesn’t have to pay every time you get hurt.

Working in the swamp is inherently dangerous …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk.

An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks. Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream.

In fact, power lines themselves can be inherently dangerous … never mind the construction phase.

Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury. But the Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than Rayburn himself did. The Court held that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power was liable for Caffrey’s negligence because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.

Case of the Day, Wednesday, November 19, 2014

DRAFT ME A VERBAL CONTRACT

Ah,l’esprit d’escalier!Those biting, snappy comebacks we wish we had said at the time. Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.” What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved on lawyers by not writing up a detailed contract. Probably less than 5% what they spent litigating the issue 20 years later …

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.

Case of the Day, Thursday, November 20, 2014

TRIGGER ALERT – SLEEP-INDUCING LEGAL TOPIC AHEAD

The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent — for his injuries. What we do know is that the utility and Cain’s employer had entered into a agreement which made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service. So under Louisiana law, the utility was immune from Cain’s suit. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, to apply where the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held: Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting? An injured worker thought workers’ comp was;’t enough … and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ.Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.

Case of the Day, Friday, November 21, 2014

SIGNS? WE DON’T NEED NO STINKIN’ SIGNS

The Andersons, livin’ large in the mountains of … Minnesota? Well, this clan had a nice family place in the backwoods, right up until the time when the land next to theirs got sold to the State.

The State built a wildlife preserve for the flatland touristers, goll-dang-it. Then, the State put up signs to stop visitors — including the neighboring Andersons — from racing their ATVs, cars and pickups up and down the wildlife trails. A year later, the State fenced off the boundaries, right across one of the trials.

The Andersons hired one of them fancy-pants city slickers with an armful of lawbooks. He told them they had a prescriptive easement, that is, a right to run their pickups and cars up and down the WMA trails, because they had done it for so long. The State argued that the recreational use statutes — not to mention Minnesota’s policy of encouraging private recreational use of land (but probably not pickup trucks being driven up and down trails) — meant that no one could acquire a prescriptive easement on recreational lands.

The Court had to balance competing interests, and although one would expect that the judiciary would bend over backwards in favor of a state-run recreational area, it played the case right down the middle. The Andersons won their prescriptive easements, but the court held the easements were not transferable, and it would expire on the deaths of the Andersons named in the suit.

The DNR put up signs prohibiting motorized vehicles on the property, and fenced across a trail where it enters the WMA. Because the Andersons had used the trails on what was now state land for more than 60 years, often driving cars, pick-up trucks, and all-terrain vehicles on them, they sued the state, claiming a prescriptive easement. The trial court found the Andersons had a prescriptive easement by motor vehicle over five trail segments in a section of the WMA. The court held that the right is not assignable and will terminate with the lives of the named Andersons. The state appealed.

Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

A prescriptive easement may be found if the person claiming the easement has acted in a manner “hostile and under a claim of right, actual, open, continuous, and exclusive.” Adverse possession may be maintained by “tacking,” when the current adverse possessor obtained the property through transfer or descent from a prior adverse possessor. The state argued that the trial court erred by granting an easement to the Andersons when Minnesota law encouraged landowners to permit public recreation on their land and purports to protect landowners from claims arising from such recreational use. The trial court was not unsympathetic to the argument, but because the recreational-use statute was passed in 1994, it applied only to causes of action arising on or after that time.

The Court of Appeals agreed, noting that while Minnesota encouraged public use of lands and waters for beneficial recreational purposes since 1961, only in 1994 was the law changed to prohibit the creation of adverse easements on private recreational lands. The Andersons had used the property and trails beginning in the 1930s, and use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence showed that the Anderson’ adverse use of the trails extended for 15 or more years before the state’s ownership of the land.

The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

The Court held here was ample evidence that the Andersons developed and used the trails, and it has long been recognized in Minnesota that a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. There is no dispute that there were existing trails when the state bought the land in 1989. That fact was sufficient to sustain the trial court’s findings.

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, neither inconsistent with the rights of the property owners and was not hostile. Because the Andersons’ use was not hostile, he argued, he reasoned, they have not obtained a prescriptive easement.

Case of the Day, Monday, November 24, 2014

YEAH, LITERALLY

One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.

Case of the Day, Tuesday, November 25, 2014

YOU CAN ALWAYS BE SAFER

The archetype of a safe man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be much safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done so, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit. In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City. Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.

Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees, can fail to ascertain the condition of those trees if it has an inspection program that is reasonable in terms of cost and efficacy.

Case of the Day, Wednesday, November 26, 2014

ASSUMPTION OF RISK

Before the bird is served, the younger turkeys in the family have to run around the backyard playing football for awhile.

Dan was a healthy, 26-year old recreational football league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in case of football, but there areexceptions), consents to reasonably foreseeable consequences of the activity. There are always sidelines markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time. And if you’re a Dan, be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity.

Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.

Dinner will have to wait for the game

Held: Summary judgment was granted to the Town, and the case dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to the voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.

In Kentucky, the Commonwealth (that’s what they call themselves, and who are we to dispute it?) is liable when it has notice of a defect in a highway. The defect in this case was a hole in the pavement, located at the curb end of a parking space. The Department of Highways people inspected that stretch of urban street regularly, but always by driving by. That area of town was teeming with commerce, so the parking spaces were always full and the hole went unseen.

When Mary Maiden fell by stepping in the hole, she sued. The Board of Claims, Kentucky’s tribunal for hearing claims against the Commonwealth, figured that the DOH employees had done all they could do to inspect the street. Thus, it found that DOH wasn’t on notice of the hole.

But the Court of Appeals reversed. In a two-to-one decision, it decided that a drive-by inspection that couldn’t see the whole street wasn’t a reasonable inspection. The case is interesting to us because the Court contrasted this situation to the decision in Commonwealth v. Callebs, a case we’ll look at Monday. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.

But Ms. Maiden’s Court said that Callebswas different: it placed an unreasonable demand on the DOH to require it to inspect every tree in a rural setting. Besides, to have seen the defect in the tree that fell on Mr. Callebs, the DOH workers would have to gone behind the tree onto private property in order to see the defect.

This case — and the one we’ll consider next — together illustrate the “touchy-feely” nature of some determinations of what is and is not “reasonable.”

Unfortunately for the Commonwealth, not every hole in the street is quite this obvious.

The Kentucky Department of Highways had agreed to maintain the street as a part of the state road system. The block in which the accident occurred is in a busy commercial area with diagonal parking on both sides of the street which is usually full during business hours. The hole was about 24 inches long, 9 inches wide and 3 inches deep and was located almost entirely at the back end of a parking space, substantially concealed from view when a car occupied the space. It had been there for some six months.

It was the statutory duty of the DOH to inspect all state-maintained roads. A foreman inspected Cumberland Avenue at least every two weeks by driving along the street in a pick-up truck during business hours. It would have been impossible to see the hole in question if there had been a car parked there, and no DOH employee had ever made a ‘walk-around’ inspection, looking under the parked cars along the street. The Board of Claims rejected Ms. Maiden’s claim, but the trial court reversed the decision, entering judgment for Mrs. Maiden. The DOH appealed.

Held: The judgment for Ms. Maiden was upheld.

The Court said the law in Kentucky is that if a defect in a highway existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. A “drive-along” inspection of a busy city street during business hours when parking areas normally were fully occupied – so that defects in the parking spaces cannot be seen – is not a reasonable inspection. Thus, the law assumed that the Department knew of the defect which caused her fall.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum earlier this year.

The Court acknowledged that while the burden of inspection may be a serious problem to the DOH, it was not too great a burden to require an inspection of streets in commercial areas to be made in ‘off’ hours when the parking spaces are not occupied. The Court distinguished the facts from the Callebs case. In Callebs, the Court had held that DOH did not have a duty to make a ‘walk-around’ inspection of trees along the edge of the right of way. That defect, however, was not in the street itself but rather in the side of the road, and the area was a rural one with light travel rather than an urban one with heavy traffic. Besides, the Court observed, an effective inspection of the trees would have required the use of a considerable amount of time, whereas in this case, an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

One judge dissented, arguing that there was really no distinction between this case and the Callebs case. A lone dissent, however, is an interesting footnote and little more.